What’s Obama Thinking? Wickard, not Marbury

Obama's remarks about the Supreme Court and ObamaCare have been criticized by conservative pundits as intemperate, inflammatory, and ignorant. What was he thinking when he said the Court would be taking an "unprecedented, extraordinary step" if it overturned a law duly passed by Congress? How could a constitutional law professor not have heard of Marbury v. Madison, which long ago established that the Court may do exactly that?

When Obama attempted damage control the next day, his remarks provided a clue as to what he might have been thinking in terms of precedent -- and it wasn't Marbury v. Madison:

[L]et me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce -- a law like that has not been overturned at least since Lochner. Right? So we’re going back to the ’30s, pre-New Deal.

...

[T]he Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this. ... I expect the Supreme Court actually to recognize that and to abide by well-established precedence out there.

In the late 1930s, Franklin Delano Roosevelt was proposing -- and the Democratic Congress under him was passing -- laws that would have required the Court to allow the federal government power to regulate interstate commerce far beyond any that had been granted before in this country. The resulting fight within the Court was similar to the battle today: textualists and originalists on the conservative side; proponents of a living Constitution almost infinitely malleable on the liberal side.

FDR first tried to retaliate against the conservative justices by packing the Court. That attempt failed, but his intimidation nevertheless managed to transform the Court into an instrument far more in line with his wishes. The shift had an especially profound effect on the judicial review of legislative actions that affect commerce:

Prior to the New Deal the judiciary was seen as guardian of the Constitution, ensuring that government activities of all kinds squared with the principles of the federal charter. Following the New Deal era, the judiciary's function changed to one of "bifurcated review," allowing great deference to the political branches in regulating economic matters and applying heightened scrutiny to government encroachments on civil liberties. [emphasis added]

It didn't hurt, either, that during his extended tenure as president Roosevelt ultimately appointed eight of its nine justices, affecting the Court's tenor long past his service and solidifying the extreme liberalizing trend.

How liberal and how extreme? Although Charles Dickens had his Oliver Twist character Mr. Bumble famously declare the law to be "a ass," most people may not realize just how big an ass the law can be until they study the 1942 Supreme Court ruling Wickard v. Filburn.

Filburn was a farmer who had been growing more than the maximum amount of wheat per acre that had been set by a 1938 federal statute. The government wanted him to destroy the excess and pay a fine. But he argued that his wheat was not interstate commerce, because it was kept completely within the confines of his own farm and only fed to his livestock.

Common sense would dictate that Filburn was correct: after all, he wasn't selling his wheat anywhere, much less interstate. But the Court ruled that Filburn's wheat-growing activities meant he'd be buying less wheat on the market to feed his chickens, and that would affect interstate commerce. As the New York Times of the day rightly observed in an editorial:

The net of the ruling … seems to be that Congress can regulate every form of economic activity if it so decides.